Tenant Holdover - Billing in Arrears

[Tom Roberts]

Longtime lurker, first time poster. I appreciate all the great contributions many have made to this site, which has assisted me greatly in the past.

I have a commercial tenant whose lease ended June 2021. Due to Covid and my own laziness, I have yet to negotiate an extension but am planning to do that within the next month... The lease states that "If Tenant fails to surrender or vacate the premises at lease end, then tenant shall be an 'at-will' tenant or tenant shall pay base rent equal to 150% of the base rent payable for the last month of the then expiring term."

We have not been billing the 150% holdover rate that should have started in July 2021. I want to be able to use this as leverage, if necessary, to secure an extension. If the tenant balks and decides they want to leave, I want to bill them for the holdover rents that were not billed/paid. If the tenant extends, I would waive the unpaid holdover rent. 

Do you see any issue with billing the unpaid holdover rents? The lease states that it should be paid. Also there is nothing in the lease that stipulates we must send a statement or that the amounts on the statement should override the lease. 

In the event that the tenant does leave and we do charge for the holdover period, there's always the likelihood that the tenant wouldn't pay it. At that point, would it be worth going legal? 

Thanks in advance for your thoughts on this.

[Tom Roberts]

@Ronald Rohde and @Will Kenner, thanks for your input. I think the best course of action is to bill it and see what happens. The total holdover rents would be in the ballpark of $50k. If they pay it, great. If not, you're probably right that it's unlikely to be worth pursuing in court. All of our leases have a clause that "loser pays" legal costs, but that comes with its own set of risks in the case that a judge sees it differently than I do.